By a margin of 57% to 43%, Ohio voters legalized recreational marijuana. As a result, recreational cannabis will become legal beginning on December 7, 2023. Ohio businesses have lots of questions about how to handle this change in regard to their employees. Here are answers to the top five questions we anticipate receiving from employers over the coming days, weeks, and months.
1. Do we have to allow employees to use marijuana on the job?
Absolutely not. Just because something is legal and used in one's personal life doesn't mean it has to be allowed at work. You can consume alcohol or pornography at home, but not at work. Marijuana is no different. You can absolutely hold employees accountable if they are under the influence at work or fail a drug test.
2. Can we still drug test employees or job applicants for marijuana?
Yes, and you can even refuse to hire someone or fire someone solely because of personal, off-the-job cannabis consumption … but question whether you want to do so. Tight job markets become even tighter if you automatically disqualify every cannabis user. Instead, if you are going to consider such prohibitions, consider limiting them to safety sensitive positions only.
3. What about employees who have a card allowing for the medical use of marijuana? What protections must we grant them?
None. Ohio's Medical Marijuana Control Program does not require employers to accommodate employees who use medical marijuana. Employers are free to fire, transfer, demote, discipline, or otherwise take an adverse action against an employee because of its use.
4. Are employees obligated to disclose marijuana use?
No. Employees are under no legal obligation to tell their employer that they use cannabis during their personal time, or if it's medically prescribed.
5. What do we do now?
Employers, you have decades of experience in how to handle the use of marijuana by employees, you just might not realize it. It's called alcohol. My recommendation? Now that cannabis is recreationally legal, employers should treat its use by employees no differently than they treat alcohol use by employees.
The bottom line for employers is not to overthink this and not to over-complicate it. Marijuana is now no different than alcohol, and you should consider amending your employment and hiring policies and practices to reflect this new normal.
If you have any questions about how the legalization of marijuana impacts your workplace, or want someone to review your current workplace drug and drug testing policies for compliance in light of this change, please contact any of WHP’s employment and labor attorneys: Jon Hyman (JHyman@WickensLaw.com | 440.695.8044); Amy DeLuca (ADeLuca@WickensLaw.com | 440.695.8062), or Matt Danese (MDanese@WickensLaw.com | 440.695.8064).
This article provides an overview and summary of the matters described therein. It is not intended to be and should not be construed as legal advice on the particular subject.